I vaguely remember from law school that you can be sued successfully for infringing a patent even if you didn’t know about it, let alone copied it. And I remember that when my partners and I sold our technology company (Press+) last year, the biggest legal hang-up in an otherwise quick and simple deal was over whether we would promise to pay the buyer’s legal fees and damages if they were ever sued, even unsuccessfully, for patent infringement. I thought that shouldn’t be a problem, because I knew how we had created what we created, but our lawyers told us we couldn’t agree to something that broad because they were so many “patent trolls” out there ready to sue anybody for almost anything, especially once a company had succeeded and developed those deep pockets.
So I’d like to see a definitive article surveying the landscape and identifying the key players in what seems to have become this era’s most destructive business litigation.
Has patent trolling become the most lucrative lawyering out there? Who’s making a killing? Who are the richest intellectual property lawyers on the plaintiffs’ and defense sides? How did they get to the top? What about those investment funds that finance the litigation?
What exactly are the rules, and have they produced the kind of monster monkey wrench when it comes to commerce, innovation and deal flow that I suspect they have? Are companies like Apple or Google destined to pay millions for litigation no matter what they do, while smaller companies get smothered by the same forces once they start to succeed? And how much did recent patent reform legislation change things in the U.S.?
In tort law, which in the United States is generally governed by state laws, several states with especially accommodating statutes and sympathetic juries became known during the 1980s as plaintiffs’ paradises. (At the American Lawyer, we did a story with exactly that title.) Are there countries around the world that now enjoy that distinction when it comes to fights over intellectual property?